As an employer, you can only terminate an employment contract where it is fair to do so. If you end someone’s employment unfairly or do not follow the correct procedure and they have been employed for more than two years then your employee may be entitled to make a claim against you for unfair or wrongful dismissal.
What is an unfair dismissal?
There are five potentially fair reasons for dismissal, otherwise a dismissal will be classed as unfair. The reasons are:
- Conduct, where there are issues over the way an employee has behaved
- Capability or qualification, where the work is not done well enough or the employee is not qualified to do the work
- Redundancy, where the position is no longer needed
- Contravention of a law, where it would be illegal for the employee to do the job, such as a driver who no longer has a licence to drive
- Some other substantial reason, which could include a breach of trust between employer and employee or the employee being unable to work amicably with another member of staff
As well as having a fair reason for dismissing an employee, the employer should follow a fair procedure in dealing with the dismissal. They will also need to show that dismissal was a reasonable response.
How to protect your business from unfair dismissal
It is essential that a full and fair process is followed in carrying out a dismissal. This should be in line with the procedure set out in your employee handbook which should follow the Acas Code of Practice on disciplinary and grievance procedures.
Failure to do this could allow an employee to bring a claim for unfair or wrongful dismissal, even if the employer had a legitimate reason for the dismissal.
It is also important to ensure that employees know what the rules are. This means that they should be written somewhere that is easily accessible and that employees know they exist.
Some reasons for dismissal are automatically unfair, including pregnancy or maternity, trade union membership, requesting family leave, taking action over a health and safety issue and whistleblowing.
How to avoid unfair dismissal
Putting robust documentation in place will go a long way to avoiding difficulties that could result in an allegation of unfair dismissal.
Employment contracts should be comprehensive and up to date. Your business should also have a disciplinary and grievance procedure in place that should be followed by both you and your employees.
When you go through the process, you should follow each step thoroughly and listen to any concerns or mitigating circumstances that your employee raises. You also need to be consistent across your business, treating all your employees the same.
You should keep careful records of each step, to include notes of meetings, so that you can demonstrate later that the procedure was fairly carried out.
If you are at the point of making a dismissal and you want to check that you have followed the proper process and that your reason is valid, you should speak to an expert employment solicitor.
If you are facing an allegation of unfair dismissal, you should seek legal advice without delay. It is often possible to resolve matters without recourse to an employment tribunal, which can be a lengthy and disruptive process.
What is constructive dismissal?
Constructive dismissal arises when an employer fundamentally breaches the terms of an employment contract causing the employee to resign.
The breach needs to be sufficiently serious to be classed as a repudiatory or fundamental breach, and cause the employee to feel that they have no choice but to leave.
A claim of constructive dismissal can often be defended successfully as it can be a difficult issue for an employee to prove. It should still be taken seriously however, and it is advisable to seek legal advice straight away.
Get in touch
At Springhouse Employment Solicitors we have extensive experience in defending allegations of unfair dismissal and will raise a strong defence on your behalf.
If you are facing allegations of unfair, wrongful or constructive dismissal and you would like to speak to us about how to proceed, contact us. Our solicitors can help with a free initial consultation.
Expertise for employers
Starting employment: contracts and policies
During employment: handling staff problems
Common issues raised by staff
- Bullying and harassment
- Constructive dismissal
- Family rights and flexible working
- Holiday and working time